Kaur v Community Children Moonee Ponds Pty Ltd

[2020] FCCA 1591

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v COMMUNITY CHILDREN MOONEE PONDS PTY LTD [2020] FCCA 1591

Catchwords:
FAIR WORK – SMALL CLAIMS – Consideration of classification of employee – unpaid hours – application for costs – orders made for amounts for unpaid hours to be paid – no costs awarded.

Legislation:

Children Services Award 2010, cl. 3.4, B.1.4 of Schedule B

Applicant: AKWINDER KAUR

Respondent: COMMUNITY CHILDREN MOONEE PONDS PTY LTD

File Number: MLG 1758 of 2019

Judgment of: Judge Blake

Hearing date: 4 May 2020

Date of Last Submission: 4 May 2020

Delivered at: Melbourne

Delivered on: 4 May 2020

REPRESENTATION

Advocate for the Applicant: In Person

Solicitors for the Applicant: None

Advocate for the Respondent: Ms Vasilevska, Operations Manager of the Respondent

Solicitors for the Respondent:	None
Amicus Curiae	Mr Truong of the Fair Work Ombudsman

ORDERS

1. Within 30 days of the date of this Order, the Respondent pay $1,065 to the Applicant on account of unpaid wages for the periods 1, 2 and 7-9 February 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1758 of 2019

AKWINDER KAUR

Applicant

And

COMMUNITY CHILDREN MOONEE PONDS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

Introduction

1. These reasons for judgment were delivered orally. They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The Court has before it a claim by Ms Kaur for outstanding wages and entitlements.  It seems to me to be relatively uncontroversial that Ms Kaur was employed by Community Children Moonee Ponds Pty Ltd (‘Centre’) on a casual basis as an assistant educator. She was employed from 20 June 2016 until February 2018.  Ms Kaur claims, among other things, unpaid wages in the sum of $5,570 and also payment of her costs in pursuing this application in the amount of $2,009. The Centre contends that these amounts are not owed. 

3. The resolution of this case largely comes down to whether or not Ms Kaur is classified as level 3.3 or 3.4 under the relevant award, the Children Services Award 2010 (‘Award’). There is a separate issue, which I will come to later, as to the payments that are outstanding in February 2018, but I will deal firstly with the question of what classification of the Award is the appropriate classification. 

Appropriate classification

1. I have read Ms Kaur’s emails annexed to her claim, and I have listened to what she has had to say to me today.  The primary thrust of Ms Kaur’s case, as the applicant, is that because she holds a diploma she says she is entitled to be classified at level 3.4 of the Award. That is the principal basis on which Ms Kaur put her case. 

2. I have examined the Award. I can find no basis in the Award to read it that way.  In other words, the Award does not say that simply because you have a diploma, you will be entitled to be classified at level 3.4.  It does not say that. What it does say, under the progression clause (Schedule B 1.4 of the Award), is that an employee who has completed a diploma and who demonstrates skills and knowledge that exceed Certificate III may be entitled to progression to level 3.4. Simply pointing to the diploma is not enough. There are two other matters that count against Ms Kaur on the classification question. 

3. The first is that I have no evidence before me as to what Australian Qualifications Framework certificate level 3 competency is. At a minimum, if Ms Kaur was going to run this case successfully, I would need before me what those competencies were, and to then have evidence before me that showed that she exceeded them. Because I do not have such evidence, I cannot, therefore, logically reach a conclusion that Ms Kaur has exceeded them. 

4. The other aspect of this is that the clause requires Ms Kaur to demonstrate those competencies. It seems to me that there is a live question as to what that means. Ms Kaur’s argument, if I put it most highly and favourably for her, is that she would say, ‘Well, I’ve done the work, and therefore I am demonstrating that I am operating at that level.’  That may be right, and that might be an answer, but there is a competing proposition, which is the definition of ‘Demonstrate’ which means to demonstrate to the satisfaction of an expert or a qualified person who knows what is required.

5. As the clause concerns the certificate level and, because we are dealing here with very young children who are obviously vulnerable, I tend to the view that demonstrating a particular competency means that it needs to be demonstrated to the satisfaction of a particular expert or qualified person.

6. For those reasons, I do not accept Ms Kaur’s claim that she ought to be classified at level 3.4. The appropriate classification for Ms Kaur is level 3.3.

Unpaid hours

1. I then turn to deal with Ms Kaur’s second claim for unpaid hours in February 2018.  I have read the Applicant’s material which was very helpful.  It clearly demonstrates that, on four of the five days, the Centre acknowledged that Ms Kaur had worked. In my view, she needs to be paid for those days. The day that was in question was 7 February 2018.  Given Ms Kaur’s evidence on this point has been consistent that she worked those days, and given that there was some inconsistency in the Centre’s evidence around this, I am satisfied that Ms Kaur also worked on 7 February 2018. 

2. I accept, for the reasons that I have articulated and the evidence that I have referred to, that Ms Kaur ought to be paid for those five days in February 2018. The amount that she should be paid for those five days in February is the amount that the legal representative from the Fair Work Ombudsman, Mr Truong, indicated to me. That is an amount of $1,065.  I will make an order that that amount be paid to Ms Kaur within 30 days of the date of this order. 

Costs

1. The other aspect of Ms Kaur’s claim was that she should be entitled to recover the costs of the proceeding pursuing this claim. 

2. Ms Kaur referred to a number of costs which I do not have the power to award, such as the hours and the loss of work and work time and so forth.  In my view, in any event, this is a case where Ms Kaur has had some success but also not had success in other aspects. 

3. This is a jurisdiction that is known for being a no costs jurisdiction.  The threshold to get costs back is high.  On that basis, I am going to exercise a discretion that no costs be ordered. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 16 June 2020